Note: Decisions of a three-justice panel are not to be
considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2003-119

JUNE TERM, 2003

Trudy Manning, M.M., Juvenile , Office of Child Support

v.

Louis LaFountain

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APPEALED FROM:

Lamoille
Family Court

DOCKET NO. 34-3-00 Ledm

Trial Judge: Edward J. Cashman

In the above-entitled cause, the Clerk will enter:

Father appeals pro se from a family court decision denying
his motion to modify parental rights and responsibilities. He contends the court
erred in: (1) failing to find a real, substantial, and unanticipated change of
circumstances; (2) denying his proffers of evidence; (3) denying him an
opportunity to make a meaningful presentation of evidence; (4) making findings
not supported by the evidence, and conclusions not supported by the findings;
and (5) failing to consider the factors set forth in 15 V.S.A.
' 665(b). We affirm.

The facts may be briefly summarized. The parties have a
daughter, who was eleven years old at the time of these proceedings. The parties
were never married. In August 2000, the family court entered an interim order,
based on a stipulation between father and mother, providing that mother was to
have sole legal and physical parental rights and responsibilities. The
stipulation also stated that the parties agreed
A that after 1 year from the date of
this stipulation and order either party upon filing a written request can
petition the court to revisit legal rights and responsibilities without a
showing of a real substantial change in circumstances.@
In October 2000, the court entered a final order, based upon a stipulation
between the parties, which provided that the interim order
A shall be the only custody order in
effect@ with a number of
modifications, including provisions relating to parent-child contact, mother=
s continued counseling with Lamoille County Mental Health, a provision ensuring
that the child remain in counseling, a provision relating to telephone contact,
and prohibitions against the use of corporal punishment, removing the child from
the state, making negative comments about the other party, and using drugs or
alcohol in the child= s presence.

Father later moved to modify parental rights and
responsibilities, seeking sole custody. The court eventually ordered a
bifurcated hearing on the motion, with the initial hearing in October 2002
limited to the question whether there had been a real, substantial and
unanticipated change of circumstances. Father appeared pro se at the hearing.
The court initially ruled that it was not bound by the stipulated waiver on the
question of whether there had been a real and substantial change of
circumstances. Father then testified on his own behalf. In response to
questioning by the court, father explained that his motion was based on mother=
s alleged failure to comply with provisions of the October order. Father cited
the provision relating to drug and alcohol use, but when asked if there were
incidents where mother had violated this provision, he responded,
A No.@
Father then mentioned the provision relating to the child=
s attendance at counseling, but acknowledged that mother was bringing her to
counseling. Father then referred to the provision concerning mother=
s continued attendance at counseling, but acknowledged that he had no way of
knowing whether or not she was in compliance.

Father continued his testimony, citing the provision relating
to corporal punishment and stating that the child often appeared at his home
with bruises which she attributed to play. He offered no evidence that the
bruises were the result of corporal punishment or physical abuse by mother.
Father concluded with an allegation that mother had violated the provision
prohibiting either parent from making negative comments about the other in the
child= s presence, but offered nothing
to substantiate the claim other than a hearsay statement by the father=
s twelve-year old niece and a purported tape recording of a conversation between
the child and mother which he did not offer into evidence. Finally, father
indicated that he had brought his mother and sisters to testify about his good
character and parenting skills.

Father did not have an opportunity to call the witnesses.
Instead, the balance of the hearing was devoted to issues relating to
parent-child contact and disputes over the transfer point and logistics. At the
conclusion of the hearing, the court modified father=
s visitation schedule, and found that father had failed to adduce evidence of a
real, substantial and unanticipated change of circumstances. The court issued a
written decision denying father= s
modification motion in February 2003. This appeal followed.

Before the court can modify a custody order, it must first
find that there has been a A real,
substantial and unanticipated change of circumstances.@
15 V.S.A. ' 668. If that threshold is
met, the moving party must then show that modification of parental rights and
responsibilities is in the best interests of the child. Id.; Gazo v.
Gazo, 166 Vt. 434, 440 (1997). We have held that a custody order may attempt
to define a change of circumstances for purposes of conferring jurisdiction on
the court in a future modification proceeding only in very limited
circumstances. Gazo, 166 Vt. at 440. We have identified two required
elements for such an order: first, where it sets a
A reasonable benchmark@
to determine changed circumstances; second, where the parties have stipulated
about their expectations concerning their living arrangements and the effect of
a change on these arrangements in a co-parenting situation. Id.; see
deBeaumont v. Goodrich, 162 Vt. 91, 96 (1994).

The provision in the order here did not establish a
reasonable benchmark to determine changed circumstances. It merely provided that
either party may seek to modify legal parental rights and responsibilities after
one year without establishing the threshold change of circumstances. This was
plainly inadequate under Gazo. Accordingly, there was no valid waiver of
the statutory requirement.

Father also contends the court improperly rejected his offers
of proof and denied him an opportunity to make a meaningful evidentiary showing.
The record evidence reveals, however, that father was afforded ample opportunity
to testify and present evidence on the issue of whether there had been a real,
substantial and unanticipated change of circumstances. Although he alleged that
mother had willfully and continually failed to comply with provisions of the
parties= agreement, his testimony
failed to substantiate that claim, and he offered no other evidence except,
perhaps, the testimony of his mother and sisters as to his own good character
and parenting skills. This was not relevant, however, to the threshold question
of whether there had been a real, substantial and unanticipated change of
circumstances. Accordingly, we discern no error.

Father also contends the evidence failed to support the court=
s findings and conclusions. As noted, however, the record amply supports the
finding that father failed to carry his burden of demonstrating a real,
substantial and unanticipated change of circumstances. Finally, father contends
the court erred in failing to consider the factors set forth in 15 V.S.A.
' 665(b), for determining the best
interests of the minor. Absent a threshold showing of changed circumstances,
however, the court was not authorized to address this issue. Gazo, 166
Vt. at 440. Accordingly, we discern no basis to disturb the judgment.